Divorce: how to protect your financial position

The Supreme Court recently ruled in favour of an oil tycoon’s estranged wife, ordering him to hand over a multimillion pound property portfolio, even though these properties were owned by an offshore company. This decision could have far reaching implications for some wealthy divorcing couples.

Published on 03 Jun 20134 minute read

Written by David Smith

However, while high profile divorce proceedings such as this – or the latest celebrity break up – demand much media attention, protecting your financial position during a period of emotional stress can be a complicated affair irrespective of your wealth. With the UK having one of the highest divorce rates in Europe, this is financial reality that many people will face during their lives.

Matrimonial home rights

It is in your interest to try to agree urgent, short-term financial matters with your ex-partner. If you can’t agree, think about what you can do to protect your position and take legal advice as soon as you can. If the family home is owned in your ex-spouse or civil partner's sole name, you should look at using a 'matrimonial home rights notice' to protect you as far as possible from your ex-partner trying to sell, transfer or mortgage the property without your agreement. You can also apply to the court for an injunction to stop your ex-partner from disposing of, transferring or selling assets or from moving assets abroad if this would prevent a fair settlement.

If you have joint accounts or loans with your ex-partner, especially if the breakup isn’t amicable, you should contact your bank, credit card and other providers to explain what has happened. You can instruct them to stop your ex-partner running up any new debts or withdrawing funds. Freezing the accounts will affect you both so make sure you think about this carefully. You'll also need to make agreements to ensure that any joint bills can still be paid, for example by Direct Debit.

Home or pension?

One of the first financial burdens is the separation of one household into two. Trading a share of a spouse’s pension for the marital home is one of the most common mistakes divorcing people make. Even though the value of the house might be equal to the value of the pension at the time of divorce, they are apples and oranges. A house requires income to pay for repairs, maintenance and improvements; a pension, however, produces income without costing income. A 50/50 division of assets may sound equal, but it may not meet your long-term needs. It’s not how many assets you have – it’s what you can do with the value of those assets that matters most.

Taxing Times

Divorce can also come with big tax bills. It’s not uncommon for a spouse to run and clear out bank accounts, cash in the Premium Bonds and sell off stocks, bonds and other investments. People are not often aware that there are tax consequences for selling certain assets. Spouses may want to get the money or need it for income, but the taxes can really add up.

Additionally, when you are married you can take advantage of the Inheritance Tax ‘spousal exemption’, meaning all assets can be passed to a spouse on the first death Inheritance-Tax free. The nil rate band of the deceased spouse also passes to the survivor thus maximising Inheritance Tax exemptions and ‘buying time’ to mitigate Inheritance Tax. Once divorced, this exemption is lost, so typically on death, any assets pass directly to the children and any value in excess of the nil-rate band will be subject to tax at 40%. A new Will, and possibly new Powers of Attorney, will need to be drawn up, incurring potentially thousands of pounds in charges.

Get financial advice as well as legal advice

Many people decide they want help to legally end their marriage or civil partnership, even if only for initial advice. Financial advisers and accountants can help with any financial aspects and legal advice can be sought from a variety of specialists including mediators and solicitors. The average cost of divorce in the UK is estimated to be £1,300.

Post-divorce you should sit down with your financial adviser and review your revised circumstances. You will need to reconsider all of your financial goals and ascertain how you will now attain them. This means reviewing your pension, life assurance and income protection assurance arrangements as well as assessing what your revised borrowing ability is. The likelihood is that, whilst you may have similar aspirations, you will likely be forced to realign your expectations.